Citation Nr: 1010094
Decision Date: 03/17/10 Archive Date: 03/24/10
DOCKET NO. 07-33 998 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle,
Washington
THE ISSUE
Entitlement to service connection for an acquired psychiatric
disorder, to include posttraumatic stress disorder.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The Veteran served on active duty from February 1973 to
August 1974.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of a January 2006 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Seattle,
Washington.
This appeal is being REMANDED to the RO via the Appeals
Management Center (AMC) in Washington, D.C. VA will notify
you if further action is required on your part.
REMAND
A review of the record in this case raises some question as
to the exact nature and etiology of the Veteran's claimed
psychiatric disorder, to include posttraumatic stress
disorder. In that regard, it is contended that, while on
"hot status" as a member of a Pershing missile crew in the
Republic of Germany, the Veteran engaged in any number of
"blind launch countdowns," never knowing which of those
countdowns were practice drills, and which might represent
the actual start of a nuclear war. According to the Veteran,
this procedure was undertaken in order to ensure that the
members of the missile crew could not make the personal
decision to sabotage a launch in order to avoid war, or to
save themselves from death as the result of a retaliatory
nuclear strike. Reportedly, it was the constant stress
involved in these countdown procedures which led to the
eventual development of a posttraumatic stress disorder, and
precipitated the Veteran's transfer from his Pershing missile
unit to a job in the motor pool as a wheeled vehicle
repairman.
In that regard, a review of service personnel records
indicates that the Veteran did, in fact, serve a member of a
Pershing missile crew in the Republic of Germany. Moreover,
further review of such records would appear to indicate that,
in July 1974, rather late in the Veteran's military career,
he was transferred from that unit to a job as a wheeled
vehicle repairman.
Significantly, service clinical records disclose that, in
October 1973, the Veteran was seen for a complaint of
insomnia, with "2 1/2 to 3 hours of tossing after going to
bed." In a subsequent service treatment record of April
1974, it was noted that the Veteran had requested a
psychiatric evaluation. Once again, the Veteran complained
of trouble with insomnia, a problem which, according to the
Veteran, he had had all his life.
At the time of an inservice psychiatric evaluation in May
1974, it was noted that the Veteran was being seen for a
complaint of insomnia. At that time, the Veteran indicated
that he could not sleep at night, with the result that he was
"draggy all day," and had trouble staying awake. When
further questioned, the Veteran reported that he had
experienced trouble sleeping all of his life, but that his
problem with insomnia had become worse since beginning
advanced individual training. Noted at the time of
evaluation was that the Veteran had been in service for
14 months, in the Federal Republic of Germany for 10 months,
and that he had a separation date of February 1976.
On further evaluation, the Veteran described an "evolved
family constellation consisting of his mother, three fathers,
two brothers, and two sisters." Reportedly, the Veteran was
the second oldest of the siblings, and was "thrown out of the
house" when he was 16 years old by his mother because his
stepfather (who was only seven years older) and he did not
get along. According to the Veteran, his mother threatened
that he would be shot on sight if he returned. The Veteran
gave a long history of domestic unrest associated with his
family and school authorities, including an incident in which
he reportedly led an organized walkout of approximately 100
students in junior high school. Also noted were numerous
trips with friends to Mexico lasting approximately two to
three weeks. When questioned, the Veteran indicated that he
had entered the service to obtain training as a heavy
equipment operator. Nonetheless, he had reportedly
experienced no difficulty with his Pershing missile military
occupational specialty until arriving in the Federal Republic
of Germany, at which time he experienced "much
dissatisfaction" with his unit. Noted at the time of
evaluation was that the Veteran exhibited a normal mental
status. In the opinion of the examiner, the Veteran appeared
to be an intelligent young soldier undergoing "situational
anxiety" and related insomnia due to stresses in his unit,
and related stresses produced by an unstable home
environment. Under the circumstances, it was felt that the
Veteran could be a worthwhile soldier if placed in a "saner
environment."
Significantly, the earliest clinical indication of the
potential presence of a posttraumatic stress disorder is
revealed by mental health records from the State of
Washington Department of Corrections dated in April 2003, at
which time it was noted that the Veteran had experienced
multiple traumas which was now surfacing as insomnia,
instability, withdrawal, anger, "and other posttraumatic
stress disorder signs and symptoms." Moreover, in a
subsequent mental health treatment record dated in April
2005, it was noted that the Veteran had been taking
medication for insomnia "secondary to a stress related
disorder, probably posttraumatic stress disorder related to
prior military service."
The Board notes that, in correspondence of January 2007, the
Veteran gave the names of thirteen individuals who were
reportedly members of his Pershing missile unit, and who had
knowledge of the protocol/procedures followed in that unit.
Moreover, in subsequent correspondence of June 2007, the
Veteran added the names of two other individuals to that
list.
Finally, the Board observes that, notwithstanding the
Veteran's furnishing an authorization and consent to release
information, the RO has not obtained records of the Veteran's
psychiatric treatment while incarcerated at the Ferguson Unit
of the Texas Department of Criminal Justice, Correctional
Institutions Division, in Huntsville, Texas. Moreover,
despite an attempt to obtain similar records from the Airway
Heights Corrections Center in Airway Heights, Washington,
such records have not been forthcoming. Significantly,
during the course of the Veteran's Substantive Appeal in
December 2007, he indicated that his service personnel record
contained certain "command staff letters" reflecting his poor
performance and transfer from the Pershing missile unit to
the motor pool, which letters were not at this time a part of
his claims folder. Moreover, notwithstanding various
arguments by the Veteran's accredited representative, he has
yet to be afforded a VA psychiatric examination for
compensation purposes. See McLendon v. Nicholson, 20 Vet.
App. 79 (2006). Such an examination is necessary prior to a
final adjudication of the Veteran's claim for service
connection for an acquired psychiatric disorder, to include
posttraumatic stress disorder.
Accordingly, in light of the aforementioned, the case is
REMANDED to the RO/AMC for the following actions:
1. The RO/AMC should contact the
appropriate service department and/or
record storage facility in an attempt to
obtain the Veteran's full service
personnel record, to include the
aforementioned "command staff letters"
and any other information relevant to the
Veteran's alleged transfer from his
position as a Pershing missile crewman to
the motor pool. All such information,
when obtained, should be made a part of
the Veteran's claims folder. Moreover,
should such information prove
unavailable, the RO/AMC should
specifically so state.
2. The RO/AMC should then contact the
Veteran, with a request that he provide a
full address for the following
individuals who reportedly had knowledge
of procedures followed in the Veteran's
Pershing missile unit: a Major [redacted], a
Captain [redacted], Specialist Fourth Class
[redacted], Specialist Fourth Class [redacted]
[redacted], Specialist Fourth Class
[redacted], Private First Class [redacted]
[redacted], Private First Class [redacted],
Private First Class [redacted], Private
First Class [redacted], Private First
Class [redacted], E-2 [redacted],
Major [redacted], and Lieutenant
Colonel [redacted]. To the extent the
Veteran is able to provide a full address
for any of the aforementioned, the RO/AMC
should contact those individuals, with a
request that they provide a description
of the protocols and/or procedures
followed in the Veteran's Pershing
missile unit. All such information, when
obtained, should be made a part of the
Veteran's claims folder.
3. The RO/AMC should then contact the
Texas Department of Criminal Justice,
Correctional Institutions Division,
located in Huntsville, Texas 77342, with
a request that they provide records of
any and all psychiatric treatment
provided the Veteran at the Ferguson Unit
during the period from 1975 to 1976.
In addition, the RO/AMC should contact
the Department of Corrections
Headquarters for the State of Washington,
located at Post Office Box 41126, 410
West 5th, Olympia, Washington 98504,
with a similar request that they provide
copies of any and all records of
psychiatric treatment of the Veteran
during the period from January to
December 2005 at the Airway Heights
Corrections Center located at Post Office
Box 1899, Airway Heights, Washington
99001. Once again, all such information,
when obtained, should be made a part of
the Veteran's claims folder. Moreover,
the Veteran should be requested to sign
the necessary authorization for release
of the aforementioned private medical
records to VA. Should the aforementioned
information prove unavailable, the RO/AMC
should specifically so state.
4. Any pertinent VA or other inpatient
or outpatient treatment records,
subsequent to April 2005, the date of the
most recent evidence of record, should
then be obtained and incorporated in the
Veteran's claims folder. The Veteran
should again be requested to sign the
necessary authorization for release of
any private medical records to VA. All
attempts to procure records should be
documented in the file. If the RO/AMC
cannot obtain records identified by the
Veteran, a notation to that effect should
be included in the file. In addition,
the Veteran and his representative should
be informed of any such problem.
5. To the extent possible (given the
fact that the Veteran is currently
incarcerated), the Veteran should then be
afforded a VA psychiatric examination in
order to more accurately determine the
exact nature and etiology of his claimed
psychiatric disorder, including
posttraumatic stress disorder. All
pertinent symptomatology and findings
should be reported in detail, and all
appropriate studies should be performed.
Following completion of the psychiatric
examination, the examiner should
specifically comment as to whether the
Veteran currently suffers from a chronic
acquired psychiatric disorder, including
posttraumatic stress disorder, and, if
so, whether that psychiatric disorder as
likely as not had its origin during the
Veteran's period of active military
service or is more properly attributable
to various events which may have occurred
during his childhood and early adult
life. All such opinions must be
supported by a full rationale, and
included in the Veteran's claims folder.
Moreover, the claims folder and a
separate copy of this REMAND must be made
available to and reviewed by the examiner
prior to completion of the examination.
In addition, a notation to the effect
that this record review has taken place
must be included in the examination
report.
6. The RO/AMC should then readjudicate
the Veteran's claim for service
connection for an acquired psychiatric
disorder, to include a posttraumatic
stress disorder. Should the benefit
sought on appeal remain denied, the
Veteran and his representative should be
provided with a Supplemental Statement of
the Case (SSOC). The SSOC must contain
notice of all relevant action taken on
the claim for benefits since the issuance
of a Statement of the Case (SOC) in
August 2007. An appropriate period of
time should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome in this case. The Veteran need take no action unless
otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).